Access to courts is an American birthright, but we are at risk of losing it.
Remember the McDonald’s coffee case? Parts of it have been memorized on a national level since the case was decided in 1994: While sitting in a car, Stella Liebeck spilled the McDonald’s coffee she was holding between her legs. She sued McDonald’s, and the jury awarded her over $2 million in punitive damages.
But Liebeck was sitting in the passenger seat of a parked car when she spilled the coffee, which seeped through her pants and scalded 16% of her body. Six percent of the burns were third degree. The injuries were so severe that Liebeck was hospitalized for a week and underwent skin graft surgery, but McDonald’s balked at her requests for medical expenses. As a last resort, Liebeck sued. That McDonald’s had not reduced the temperature of the coffee from the 180-190 degree range (hotter than the radiator of a running car) after having been notified of 700 burn incidents before Liebeck’s was not lost on the jury, which awarded Liebeck compensation for her medical bills and $2.7 million – the profits of two days of coffee sales at McDonald’s – in punitive damages. (For a quick video primer, the New York Times recently revisited the case.)
The public backlash, triggered by big-business lobbying efforts to recast the narrative in a favorable light, was swift and severe. The case was cited in tort reform legislation efforts across the country, including in Congressional legislation that President Clinton ultimately vetoed. Efforts at the individual state level were much more successful, though. Legislation capping damages available to plaintiffs in medical malpractice litigation has been passed in most states, although several state supreme courts have invalidated such measures. Today, a fear of greedy plaintiffs (and their lawyers) sees less media bluster than it did in the wake of the Liebeck verdict, but new state laws limiting damages and raising the bar for plaintiffs in class action and medical malpractice claims continue to quietly trickle onto the books. The issue is back in the federal government, too, where medical malpractice reform is a cornerstone of House Republicans’ proposed American Health Care Reform Act (“Title I: Repeal of Obamacare”).
Back in 1994, public reaction embodied what seems to be an irresolvable cognitive dissonance in the American psyche over punitive damages in single-plaintiff torts claims. We want companies that hurt us to be punished severely enough that they won’t do it again. We know that charging the companies a lot of money is one of the only ways to do that. But as soon as that money goes to an individual – someone like us, who just happened to have the good fortune to get hurt – we freak out, because they’re getting so much money the whole system seems like a scam.
Liebeck’s story made sense in the courtroom: the temperature of the coffee was not a matter of dispute, the jury saw her burns, and the jury believed her story. The assignation of blame to McDonald’s, aside from a small percentage assigned to Liebeck because she spilled the coffee herself, is perfectly reasonable.
Public opinion, though, does its own assignation of guilt, and it doesn’t have to apply the law. On that metric, Liebeck is suspect for bringing the case to begin with, because we’ve developed the narrative that using the system is abusing the system.
I recently watched Hot Coffee, the 2011 Susan Saladoff documentary on tort reform initiatives that features the Liebeck story prominently. The final act of the film follows Jamie Leigh Jones, a former contractor for KBR (then Halliburton) in Iraq who claimed that she was drugged and gang-raped on her fourth day on the job, and that KBR’s mandatory arbitration clause meant that she would never have an opportunity to face the perpetrators—or the company that allowed it to happen—in court. (It was difficult to watch, not only because of the harrowing nature of Jamie’s narrative, but also because it has recently come to light that most of her claims are likely fabricated. After years of legal struggles, Jones finally was permitted to pursue those claims in court. She lost.)
Back in 2007, though, Jones testified before Congress, and her story—the story of a vulnerable woman attacked and manipulated by a giant corporation and the men who ran it with impunity—caused uproar. Led by newly minted Senator Al Franken, Congress enacted legislation forbidding the government to contract with companies that forced employees into arbitration in cases of abuse and discrimination. True or not, Jones’s story inspired legislation that should already have been in place.
By 2008, the United States employed more contractors in Iraq than it did soldiers—over 158,000. Many had no recourse to the American legal system if they were abused, harassed, or mistreated at work.
We shouldn’t have needed Jamie Leigh Jones to change that. Courts are designed to react to wrongdoing; the litigation process is retrospective and is only invoked, by design, when something goes terribly wrong. Legislation has the luxury of being prospective, of preventing harm, and it shouldn’t take a heartbreaking story to guarantee Americans access to their own courts.
Whether it’s by default acquiescing to mandatory arbitration clauses, or actively supporting tort reform legislation that restricts damages, narrows causes of actions, and keeps plaintiffs out of court, when we waive our right to a courtroom and encourage the limitation of it for others, we are all engaging in a dangerous phenomenon. We shouldn’t give up one of our greatest rights just because we personally haven’t needed it yet, because what if one day, we do?
